UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

JULIET SWEIS, 

Plaintiff, 

v. 

UNITES STATES FOREIGN 

CLAIMS SETTLEMENT 

COMMISSION, et al., 

Defendants. 

Civil Action No. 13-366 (GK) 

MEMORANDUM OPINION 

Plaintiff Juliet Sweis ("Sweis" or "Plaintiff") brings this 

action against the United States Foreign Claims Settlement 

Commission ( "FCSC" or "Commission") , its Commissioners, Rafael 

Martinez and Anuj Desai, the United States Department of State 

("State Department"), John Kerry in his official capacity as 

Secretary of State, the Department of Justice ( "DOJ") , Eric 

Holder in his official capacity as Attorney General, the United 

States Department of Treasury ("Treasury Department"), and Jacob 

Lew in his official capacity as Secretary of the Department of 

Treasury (collectively, "Defendants" or "Government"). Plaintiff 

alleges violations of the Administrative Procedure Act ( "APA") , 

5 U.S.C. § 551 et seq., and separation-of-powers principles. 
This matter is presently before the Court on Plaintiff's 

Motion and Memorandum in Support Thereof for a Preliminary 

Injunction [Dkt. No. 8]. Upon consideration of the Motion, 

Opposition [Dkt. No. 12], and the entire record herein, and for 

the reasons stated below, Plaintiff's Motion is denied. 

I . BACKGROUND 

On December 27, 1985, Sweis was injured when four Abut 

Nidal Organization terrorists opened fire in the Rome 

International Airport. Complaint ( "Compl.") ~ 13. She was seven 

years old at the time and suffered "hand grenade shrapnel and 

concussion injuries to her head, resulting in permanent physical 

injuries." Id. ~ 20. 

On April 21, 2006, a group of individuals, including 

members of Sweis's family, were named as plaintiffs in a lawsuit 

in this Court, Buonocore v. Great Socialist People's Libyan Aeab 

Jamahiriya, Case No. 06-727 ("Buonocore"). Compl. ~ 26. Sweis 

was not a named plaintiff. On July 9, 2007, that complaint was 

dismissed without prejudice. [Case No. 06-727, Dkt. No. 34] 

On March 28, 2008, an amended complaint was filed in 

Buonocore. Compl. ~ 30. Sweis was added as a named plaintiff, 

but did not allege any physical injuries. Id. 

On August 4, 2008, President George W. Bush signed into law 

the Libyan Claims Resolution Act ("LCRA"), Pub. L. No. 110-301, 

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122 Stat. 2999 (2008). Id. ~~ 36, 45. The stated purpose of the 

LCRA is to provide for "fair compensation to all nationals of 

the United States who have terrorism-related claims against 

Libya through a comprehensive settlement of claims by such 

nationals against Libya pursuant to an international agreement 

between the United States and Libya." Id. ~ 45. 

On August 14, 2008, the United States and Libya entered 

into an international claims agreement, the US-Libya Claims 

Settlement Agreement ( "LCSA") . Id. ~ 4 6. The LCSA intended to 

settle all claims, terminate pending claims, and preclude future 

claims. Defs.' Mot. to Dismiss & Opp' n to Pl.'s Mot. for a 

Prelim. Inj. ( "Defs.' Opp' n") Ex. 2, p. 3. 

On October 31, 2008, President George W. Bush signed 

Executive Order 13,477. Id. ~ 47. The Executive Order declared 

that all terrorism-related claims of U.S. nationals against 

Libya were settled by the LCSA and terminated pending suits in 

U.S. courts. Id. ~ 48. On December 24, 2008, this Court granted 

the Libyan Defendants' Motion to Dismiss with prejudice in 

Buonocore, as a result of the LCRA and the Executive Order. 

[Case No. 06-727, Dkt. No. 78] 

On December 11, 2008, the State Department referred certain 

claims to the FCSC, a quasi-judicial, independent agency within 

the Department of Justice ("First Referral") . Compl. ~~ 52, 55. 

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The First Referral created jurisdiction in the FCSC over the 

claims of U.S. nationals who were named plaintiffs who had pled 

physical injury in pending litigation, including Buonocore. Id. 

~ 55. On March the Commission announced the 

commencement of its adjudication of the claims contained in the 

First Referral. Id. ~ 58 (citing 74 Fed. Reg. 12,148). 

Sweis filed a timely claim under the First Referral. Compl. 

~ 59. On February 18, 2010, the FCSC entered a Proposed Decision 

declaring that it did not have jurisdiction over Sweis's claim 

because she had not pled a physical injury in the Buonocore 

complaint. Id. ~ 62. 

On March 1, 2012, Sweis filed a motion to amend the 

Buonocore complaint nunc pro tunc to March 28, 2008, the date of 

the original filing. The purpose of the amendment was to include 

allegations regarding the physical injuries suffered by Sweis 

during the Rome Airport Attack. Compl. ~ 61. On April 2, 2010, 

this Court granted that motion. [Case No. 06-727, Dkt No. 81] 

Sweis objected to the FCSC's Proposed Decision, and 

provided the Commission with this Court's nunc pro tunc order 

permitting her to amend her complaint. Compl. ~ 63. On September 

the Commission held a hearing devoted to this 

particular jurisdictional issue. Id. ~ 64. 

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On December 12 1 2012/ the Commission issued a Final 

Decision refusing to assert jurisdiction over SweiS 1 S claim. It 

concluded that the First Referral 1 s explicit exclusion of 

individuals who had alleged only emotional injuries would be 

rendered meaningless if such claimants could retroactively amend 

their claims to include allegations of physical injury. Pl. 1 s 

Mot. & Mem. in Support Thereof for a Prelim. Inj . ("Pl. 1 s Mot. 11 ) 

Ex. 8 1 pp. 5-6. The Commission also considered the nunc pro tunc 

Order 1 but held that such orders could not be used to change 

substantive rights or jurisdictional facts. Id. pp. 11-12. Thus 1 

it concluded that the Order did not change the jurisdictional 

fact that Sweis had not alleged a physical injury in a pending 

case at the time of the First Referral. Id. pp. 12-13. 

On January 15 1 2009/ the State Department referred 

additional claims to the FCSC ("Second Referral 11 ). Compl. ~ 71. 

These claims were divided into multiple categories. Id. 

"Category W 1 included U.S. nationals who had been physically 

injured in Libyan terrorist attacks who had not been named as 

plaintiffs in pending litigation. Id. On July 7 1 2009 1 the 

Commission announced the commencement of its adjudication of the 

claims contained in the Second Referral. Id. ~ 73 (citing 74 

Fed. Reg. 32 1 193). 

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Sweis filed a claim under the State Department's Second 

Referral. On December 12, 2012, the Commission issued a Proposed 

Decision declaring that it did not have jurisdiction over her 

claim under Category E, because Sweis had been a named plaintiff 

in the Buonocore complaint. Compl. ~ 75. On February 16, 2013, 

the Commission issued its Final Decision denying Sweis's Second 

Referral Claim. Id. ~ 76. 

On March 21, 2013, Sweis filed the instant complaint. On 

March 27, 2013, she filed a Motion for Preliminary Injunction 

[Dkt. No. 8] . On April 8, 2 013, Defendants filed a Motion to 

Dismiss and Opposition to Plaintiff's Motion for a Preliminary 

Injunction [Dkt. No. 12] 

II. STANDARD OF REVIEW 

A preliminary injunction is an "extraordinary and drastic 

remedy," Munaf v. Geren, 553 U.S. 674, 689 (2008) (citation 

omitted) , and "may only be awarded upon a clear showing that the 

plaintiff is entitled to such relief." Sherley v. Sebelius, 644 

F.3d 388, 392 (D.C. Cir. 2011) (quoting Winter v. Natural Res. 

Def. Council, Inc., 555 U.S. 7, 22 (2008)); see Mazurek v. 

Armstrong, 520 U.S. 968, 972 (1997) (noting that "the movant, by 

a clear showing, carries the burden of persuasion") (emphasis in 

original) . 

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A party seeking a preliminary injunction must establish 

"[1] that [she] is likely to succeed on the merits, [2] that 

[she] is likely to suffer irreparable harm in the absence of 

preliminary relief, [3] that the balance of the equities tips in 

[her] favor, and [4] that an injunction is in the public 

interest." Winter, 555 U.S. at 20. 

In the past, these four factors "have typically been 

evaluated on a 'sliding scale[,]' "such that "[i]f the movant 

makes an unusually strong showing on one of the factors, then 

[she] does not necessarily have to make as strong a showing on 

another factor." Davis v. Pension Benefit Guar. Corp., 571 F.3d 

1288, 1291-92 (D.C. Cir. 2009) (citing Davenport v. Int'l Bhd. 

of Teamsters, AFL-CIO, 166 F.3d 356, 361 (D.C. Cir. 1999)). 

The continued viability of the sliding scale approach is 

uncertain as the Supreme Court and the D.C. Circuit have 

strongly suggested, without holding, that plaintiffs are 

required to independently demonstrate a likelihood of success on 

the merits. Sherley, 644 F.3d at 392-33; see also Davis, 571 

F.3d at 1292. 

However, this Court does not need to address that issue 

because our Court of Appeals has always held that "the sine qua 

non of the preliminary injunction inquiry," is some showing of 

irreparable injury in the absence of an injunction. Trudeau v. 

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F.T.C., 384 F. Supp. 2d 281, 296 (D.D.C. 2005) I aff'd, 

178 (D.C. Cir. 2006); see also Davis, 571 F.3d 

446 F.3d 

at 1296 -----

(declaring that plaintiff "must show a likelihood of irreparable 

harm") (Kavanaugh, J. , concurring) . A court can refuse to issue 

an injunction without considering any other factors if 

irreparable harm is not demonstrated. See Chaplaincy of Full 

Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) 

("A movant's failure to show any irreparable harm is 

grounds for refusing to issue a preliminary injunction, even if 

the other three factors entering the calculus merit such 

relief") ; see also Winter, 555 U.S. at 22 (holding there was no 

need to address underlying merits of plaintiffs' claims after 

finding that there was no likelihood of irreparable harm and 

that the balance of the equities and consideration of the public 

interest weighed in favor of the defendants) . 

III. ANALYSIS 

Sweis seeks a permanent injunction "against Defendants to 

ensure the retention of [the] funds necessary to 

compensate Plaintiff under the Libya Claims Settlement Program." 

Pl.'s Mot. 1-2. She insists that the Commission should set aside 

$3 million, the amount that physically-injured claimants have 

received under the LCRA. Id. at 15-16; Pl.'s Mot. Ex. 5, p. 3. 

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Sweis claims that she will be irreparably injured if the 

money is not set aside because "it is not known what the U.S. 

government plans to do" with the funds that remain after the 

Commission "has confirmed that all claims have been finalized," 

and "it is possible that the remaining funds would leave the 

jurisdiction of the United States while the proceeding is being 

heard by this Court" (emphasis added). Pl.'s Mot. at 2. These 

allegations clearly do not establish a likelihood that Sweis 

will be irreparably harmed in the absence of an injunction. 

Our Court of Appeals has set a high standard for 

irreparable injury. Chaplaincy of Full Gospel Churches v. 

England, 454 F.3d 290, 297-98 (D.C. Cir. 2006). The injury "must 

be both certain and great; it must be actual and not 

theoretical." Wise. Gas Co. v. F.E.R.C., 758 F.2d 669, 674 (D.C. 

Cir. 1985) (per curiam) ; Winter, 555 U.S. at 22 (holding that 

irreparable injury must be likely, "not just a possibility"). An 

injunction is not warranted when a movant alleges injuries 

"merely 'feared.'" Comm. in Solidarity with the People of El 

Salvador (CISPES) v. Sessions, 929 F.2d 742, 745-46 (D.C. Cir. 

1991) (quoting Exxon Corp. v. F.T.C., 589 F.2d 582, 594 (D.C. 

Cir. 1978)). 

Sweis's allegations are based on nothing more than fear and 

possibility. She admits that she does not know what the 

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government will do with any surplus funds but notes that "it is 

possible~~ that the remaining funds might be removed from the 

jurisdiction of the United States. Pl.'s Mot. at 2. Later in her 

motion, Sweis alleges that "[t]here is no doubt that the surplus 

funds will be either returned to Libya or disbursed otherwise 

should the Court not require the maintenance of · a sufficient 

amount by granting this motion. 11 Pl. 's Mot. 14-15. However, she 

provides no support for this proposition. See Mazurek, 520 U.S. 

at 972 (noting that burden of persuasion is on movant) . 

The mere fact that the Government has control over any 

surplus funds and has not indicated what it intends to do with 

them does not establish a likelihood of irreparable harm to 

Sweis. See Stand Up For California! v. Dep' t of the Interior, 

Case No. 12-2039, 2013 WL 324035, at *26 (D.D.C. Jan. 29, 2013) 

(finding no likelihood of harm when plaintiffs focus was on what 

defendant "will have the ability to do 11 rather than what they 

would, in fact, do). The Government has asserted that it does 

not know the precise amount of funds that remain, but that the 

next step would be to "consider referring additional categories 

of claims to the FCSC, 11 including possibly referring "claims 

that were rejected by the FCSC on jurisdictional grounds 11 like 

Sweis's. Defs.' Opp'n, Ex. 13, Declaration of Lisa J. Grosh ~~ 

7-9. Thus, there is a "possibility that adequate compensatory or 

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other corrective relief will be available at a later date," 

which "weighs heavily against a claim of irreparable harm." 

Chaplaincy of Full Gospel Churches, 454 F.3d at 297-98 (citation 

omitted) . 

Moreover, our Court of Appeals has established that 

"economic loss does not, in and of itself, constitute 

irreparable harm." Wise. Gas Co., 758 F.2d at 674; see also 

Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1295 (D.C. 

Cir. 2009) (noting "general rule that economic harm does not 

constitute irreparable injury") . Thus, because the only injury 

that Sweis alleges is economic, she has not met her burden of 

showing the possibility of an "irreparable harm," much less 

established that such harm is likely to occur. 

Sweis insists that her separation-of-powers claim 

independently justifies an injunction, because "the loss of 

constitutional freedoms, 'for even minimal periods of time, 

unquestionably constitutes irreparable injury.'" Mills v. Dist. 

of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009) (quoting Elrod 

v. Burns, 4 2 7 U.S. 3 4 7, 3 7 3 ( 19 7 6) ) However, our Court of 

Appeals has indicated that merely raising a constitutional claim 

is insufficient to warrant a presumption of irreparable injury. 

Moreover, when a party is seeking a mandatory injunction, 

as here, that would alter the status quo rather than preserve 

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it, "the moving party must meet a higher standard than in the 

ordinary case by showing 'clearly' that he or she is entitled to 

relief or that 'extreme or very serious damage will result from 

the denial of the injunction.'" Nat' 1 Conf. on Ministry to 

Armed Forces v. James, 278 F. Supp. 2d 37, 43 (D.D.C. 2003) 

(quoting Columbia Hosp. for Women Foundation v. Bank of TokyoMisabishi, Ltd., 15 F. Supp. 2d 1, 4 (D.D.C. 1997), aff'd 159 

F.2d 636 (D.C. Cir. 1998)). 

Rather, a movant must indicate that a particular 

constitutional interest is "either threatened or in fact being 

impaired at the time" the movant seeks injunctive relief. 

Chaplaincy of Full Gospel Churches, 454 F. 3d at 302 (quoting 

Elrod, 427 U.S. at 373 (plurality opinion)) (emphasis added) . 

Sweis's constitutional argument is that the Commission violated 

the separation-of-powers principles inherent in the Constitution 

when it "ignored" this Court's nunc pro tunc Order and the 

Federal Rules of Civil Procedure in its Final Decision. 

Even if an injunction to bar the government from disposing 

of the $3 million was granted, the alleged constitutional 

violation - the Commission's decision - would remain in effect. 

Because granting this injunction would do nothing to prevent 

"the loss of [constitutional] freedoms, for even minimal periods 

of time," the presumption of irreparable harm is inappropriate. 

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harm is inappropriate. See Time Warner Entm't Co. L.P. v. 

F.C.C., 810 F. Supp. 1302, 1304 (D.D.C. 1992) aff'd in part, 93 

F.3d 957 (D.C. Cir. 1996) (refusing to grant presumption of 

irreparable harm when "record clearly reveals that no 

deprivation of defendants' making is presently occurring, and 

none is likely to occur before the merits of this controversy 

are decided"). In this case, no constitutional interest is 

"either threatened or in fact being impaired at the time." 

Sweis now seeks injunctive relief. 

Sweis has failed to show any likelihood of irreparable harm 

in the absence of a preliminary injunction. Because this showing 

is "the sine qua non of the preliminary injunction inquiry," 

Trudeau, 384 F. Supp. 2d at 296, the Court does not need to 

address the other preliminary injunction requirements. 1 

1 The Court is particularly hesitant to address the likelihood of 

Sweis's success on the merits because she has moved for leave to 

file an Amended Complaint. That Motion is not ripe, but, if 

granted, will render the Complaint a nullity, Hollie v. Smith, 

813 F. Supp. 2d 214, 216 n.2 (D.D.C. 2011), and Defendants' 

current Motion to Dismiss moot. See Gray v. D.C. Public School, 

688 F. Supp. 2d 1, 6 (D.D.C. 2010) (citation omitted). 

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IV. CONCLUSION 

For the foregoing reasons, Plaintiff's Motion for a 

Preliminary Injunction is denied. An Order shall accompany this 

Memorandum Opinion. 

June f?_, 2013 

United 

Gladyfi:~~ States District Judge 

Copies to: attorneys on record via ECF 

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